Assessing legislative drafting for undergraduate LLB students (with an exercise used in 2020)
This post is in response to a couple of queries I have had about assessing legislative drafting for undergraduate LLB students. I try to summarise the background here and will give the assessment we used in 2020 to let others see what students were set and to give a sense of the standard we expected.
In my one semester long Legislation Honours class for senior undergraduate students we split the class between statutory interpretation (for half of the class) and legislative drafting (for the second half of the class).
The class is assessed by an interpretation question and then by a legislative drafting exercise where students are asked to draft legislation based on a set of instructions which draw on a published policy document.
Within the Scottish Parliament backbench MSPs can put forward proposals for bills. These proposals involve the preparation of consultation papers, a consultation exercise, and then a bill can be introduced when any proposal gains sufficient support from MSPs.
For a class where drafting legislation is assessed it is useful to base the exercise on a substantive consultation to prepare legislation. So what was decided in running the class was to draw on a consultation paper and consultation responses and background papers and to prepare a set of drafting instructions seeking the implementation of policy into legislation (with some gaps and problems) for students to address in drafting.
As the exercise is based on a real proposal a real consultation paper and real MSP is referred to. Although the instructions are wholly fictitious and do not in any way represent the position of the relevant MSP the real documents are intended to give the students sufficient background on the law that the legislation is being prepared against and when instructions are unclear to at least ask relevant questions from the instructing solicitor.
The exercise requires the student to prepare a bill implementing the instructions and to prepare a minute alongside it explaining drafting decisions and identifying any additional information that would be required. No word limit is set for the exercise and answers varied from a bill of under 2 pages to a bill of 7 pages or so with a one a half page minute. Students also split with some doing amendments of existing legislation, and others doing a freestanding bill with repeals of existing provisions.
At the time of preparing the exercise students had had 4 attempts at drafting material on which they had received feedback in the class.
Here is the exercise and a reminder that this does not represent the final policy position of the MSP referenced but is based on real policy and consultation papers and responses.
Legislation (Honours) 2019–20
Drafting assessment
From: Scottish Parliament Non-Government Bills Unit
To: Parliamentary Counsel
PROPOSED RESPONSIBLE BREEDING AND OWNERSHIP OF DOGS (SCOTLAND) BILL
[date exercise handed out]
BACKGROUND
1. Christine Grahame MSP has obtained the right to introduce a member’s Bill to improve the overall health and wellbeing of the dog population if Scotland by encouraging more responsible behaviour by breeders and owners of dogs. The motivation behind this proposed legislation is to encourage animal welfare.
2. These are instructions for the preparation of a Bill that she can introduce in the Parliament in exercise of that right.
3. Ms Grahame’s consultation paper on her proposal for the Bill sets out the background. It is available online: https://www.parliament.scot/S5MembersBills/20180502_Final_Draft_Consultation_Responsible_Dog_Ownership_(003).pdf [nolw http://archive2021.parliament.scot/S5MembersBills/20180502_Final_Draft_Consultation_Responsible_Dog_Ownership_(003).pdf ]
4. Counsel may also be interested to read the summary of responses to the consultation, which is also available online:
https://www.parliament.scot/S5MembersBills/20190226_Consultation_summary_Resp_Dog_Ownership_FINAL.pdf [now http://archive2021.parliament.scot/S5MembersBills/20190226_Consultation_summary_Resp_Dog_Ownership_FINAL.pdf ]
5. We outlined all the relevant law and background papers that we are aware of in pages 13 to 17 of Ms Grahame’s consultation paper. Rather than repeat that here, we refer counsel to that outline. Counsel should note the terms of the Breeding of Dogs Act 1973, the Breeding and Sale of Dogs (Welfare) Act 1999. the Animal Health and Welfare (Scotland) Act 2006, and the Licensing of Animal Dealers (Young Cats and Young Dogs) (Scotland) Regulations, SSI 2009/141.
6. After the consultation by Ms Grahame the Scottish government consulted on whether the law relating to the breeding of dogs, cats, and rabbits should be reformed. The consultation document is available online:
7. The Scottish government consultation received 675 responses. A summary of responses is available online:
8. There is a degree of overlap between the proposals consulted on by the Scottish government and the proposals presented by Ms Grahame (see Part III of the Scottish government consultation paper).
9. In her response to the consultation responses to her proposed members’ bill Ms Grahame noted that the Scottish government was consulting on the area and likely to legislate. However, since that time there is no sign of a bill and the parliamentary statement on 1st April 2020 by the Scottish government regarding its legislative programme indicates time will not be available to work on Scottish government legislation in this area. We would therefore like to instruct a bill which implements Ms Grahame’s proposals, taking account of the responses to the government consultation.
10. The current law should be amended or clarified to provide that anyone who has a business where they breed dogs for sale needs a licence to do so, no matter how many dogs they breed during the year.
11. A licence to breed dogs should also be required by any breeder who produces at least three litters in a year from their dogs.
12. In consultation responses it was noted that the existing law can be circumvented in one way. It is noted that while the law regulates the position for those who are selling dogs commercially some breeders circumvent the existing regime by transferring or gifting dogs. This loophole should be stopped so breeders who supply dogs (even if by gift or other form of transfer) should require a licence.
13. While breeders who supply or gift dogs should require a licence it is not intended to catch people who keep dogs at home and have an unwanted litter and give dogs away to family and friends.
14. If the dogs born in a litter are gifted or taken to a dogs home or animal shelter no licence should be required either. If the legislation is to encourage animal welfare it seems sensible to ensure that breeders can take dogs to these shelters.
15. Licences are to be granted by local authorities in the area where the breeder keeps the dogs.
15. The granting of a licence for breeding and supply of dogs should be capable of being subject to conditions to ensure the welfare of the dogs.
16. It should not be possible to have a licence for dogs to have more than one litter in a year.
17. No licence should permit dogs under one year of age to be used in breeding.
18. A licence should also provide that (a) at all times the dogs are kept in accommodation that is of an appropriate construction and size with appropriate exercise facilities, temperature, lighting, ventilation and cleanliness; (b) the accommodation where the dogs are kept is provided with appropriate whelping facilities; © the dogs and their litters are supplied with suitable food, drink and bedding; and (d)the accommodation is supplied with adequate facilities to enable them to exhibit normal behaviour patterns. Some of these requirements overlap with the Scottish government Code of Practice for the Welfare of Dogs 2010 which is mentioned in the next paragraph.
19. The grant of a licence should be dependent on the breeder keeping dogs in a healthy condition. The Scottish government has a Code of Practice for the Welfare of Dogs, 2010 made under The Animal Health and Welfare (Scotland) Act 2006, s.37. Anyone getting a licence should comply with that guidance and any later guidance made under that section.
20. The grant of a licence should also be dependent on the breeder meeting other requirements which are to be set out in regulations to be made later. The Kennel Club, the Scottish Kennel Club, the Animal Welfare Foundation, and the Scottish Society for the Prevention of Cruelty to Animals have all recently published guidance which indicates standards that should be expected from breeders of dogs. It seems appropriate to give ministers the power to make regulations to determine any other appropriate animal welfare standards to be complied with. Doing this by regulations would give flexibility to update the list relatively quickly. It is left to counsel to determine the most effective procedure for making the regulations.
21. A licence should be capable of restricting the number of dogs kept in any particular accommodation. The sites where dogs are kept might differ in size and so the local authority should be able to set a maximum based on the size of the site. There should be an upper limit as to the number of dogs that can be kept on a site and it should be no more than twenty breeding dogs.
22.The licence should be applied for at the cost of the breeder. The application should be made to the local authority and the local authority can grant or reject the application for the licence. In deciding whether or not to grant the licence the local authority should apply the conditions listed. The local authority should be able to grant a licence for a period of between one and three years. In deciding whether to grant the licence the local authority should be able to take into account whether the breeder has had a licence previously and whether the breeder has complied with all the terms of the licence.
23. The local authority should only be permitted to grant a licence to a person who is a fit and proper person. Those people barred by the Breeding of Dogs Act 1973, s 1 (2) and (2AA) should continue not to be able to hold a breeding and rearing licence and should be defined as not being fit and proper persons to hold a licence.
24. A fit and proper person will also be someone who has never breached a licence condition within the previous three years
25. If the local authority discovers that the licence or the conditions of the licence have been breached the local authority should be able to revoke the licence where they think the breach is serious enough.
26. If the local authority decides to revoke the licence for breach of the licence or of the conditions of the licence the breeder should be given twenty one days notice of the intention to revoke the licence and should be able to challenge the matter in the sheriff court.
27. If a breeder sells or supplies a dog without a licence or if the licence or the conditions of the licence are breached the breeder should also be liable to a maximum of a fine at level 5 on the standard scale (see section 225 of the Criminal Procedure (Scotland) Act 1995), or up to 6 months’ imprisonment.
28. Instructions will be sent separately for the temporary registration scheme discussed by Ms Grahame at pp 19–21 of her consultation paper. No provisions regarding this should be in the draft at the moment as the policy details for this are still being worked up.
29. We leave it to counsel to decide whether to draft this as freestanding legislation, repealing and replacing previous legislation in the area, or to amend existing legislation.
30. We leave the choice of the Bill’s long title and short title to counsel.
31. As is customary, the provisions dealing with short title and commencement should come into force on the day after Royal Assent. Everything else is to be commenced by regulations made by the Scottish Ministers.
EXERCISE
The student is to produce a draft bill in response to these instructions.
The draft bill is to be accompanied with a minute from the parliamentary counsel to the Scottish Parliament Non-Government Bills Unit explaining drafting decisions made in the draft and asking for clarification or further information on issues that are not clear in the instructions or which arise in implementing the instructions.
